Mr B Gibson v Lothian Leisure background
Like many businesses, Lothian Leisure faced issues when lockdown hit during March 2020. As a result, Mr Gibson, who was employed as a chef, was put on furlough by the company.
In his personal life, Mr Gibson’s father has several medical issues including a brain tumour, Colitis and Addison’s disease, and was therefore shielding during the pandemic. During furlough, and in the lead up to the end of lockdown and the prospective re-opening of the restaurant sector, Lothian Leisure wanted Mr Gibson to return to work.
Mr Gibson raised concerns about his father catching Covid from his return to work. Lothian Leisure provided no personal protective equipment for staff and they had no intention of requiring staff to take precautions and create a Covid secure working environment. Furthermore, Mr Gibson was met with a negative response to his concerns and was told to “shut up and get on with it”. Thereafter, the company started to see Mr Gibson as a nuisance.
After refusing to return to work, without any discussion or any process, Mr Gibson’s employment was terminated with immediate effect via text on 30 May 2020. Mr Gibson received no notice pay and no pay for accrued untaken annual leave. Mr Gibson brought a claim for unfair dismissal, notice pay, holiday pay and arrears of pay.
Under section 100 (and section 44) of the Employment Rights Act 1996 (“ERA 1996”), employees are protected from dismissal in circumstances of danger which the employee reasonably believed to be serious and imminent and in so believing that, he took appropriate steps to protect himself from danger.
Employees shall be regarded as being unfairly dismissed if this was the reason for the dismissal. There is no need for an employee to have 2 years’ continuous service to claim unfair dismissal in these circumstances.
The tribunal was satisfied that there were circumstances of danger from the growing prevalence of infections by the Covid-19 virus and that the circumstances were serious and imminent at the time Mr Gibson raised his concerns, hence raising the issue of PPE.
The raising of the issue amounted to an appropriate step to protect his father from danger. Until raising his concerns, he had been a successful and valued member of staff and nothing else had occurred during his employment to alter that position. Mr Gibson’s claim was successful and the tribunal found that he had been unfairly dismissed.
Mr Gibson was awarded a basic award of £6,562 and a £14,500 compensation reflecting the fact that he was out of work for 29 weeks.
Mr Gibson also received one week’s notice pay and £1,200 for an accrued holiday. He was also compensated for lost pension contributions his employer had deducted from his salary but had not paid into a pension scheme.
With the Covid-19 virus around, it was been easy for employees to argue a reasonable belief that the pandemic has created circumstances of danger which are serious and imminent. This is likely to change with the increase of the vaccine which has led to a decrease in the number of hospitalisations and fatalities. However, some employees will be reluctant to return to the workplace and these issues should be managed carefully in light of the risk of employee claims.
Should you need legal advice on any of the issues discussed in this article or guidance on how to bring your workforce back to the workplace, contact our employment solicitors today.